Chapter 971

971.16 Annotation “Mental condition” under sub. (3) refers to the defense of mental disease or defect, not to an intoxication defense. Loveday v. State, 74 Wis. 2d 503, 247 N.W.2d 116 (1976).

971.16 Annotation An indigent defendant is constitutionally entitled to an examining physician, at state expense, when mental status is an issue, but this statute is not the vehicle to satisfy this right. State v. Burdick, 166 Wis. 2d 785, 480 N.W.2d 528 (Ct. App. 1992).

971.165 971.165 Trial of actions upon plea of not guilty by reason of mental disease or defect.

971.165(1) (1) If a defendant couples a plea of not guilty with a plea of not guilty by reason of mental disease or defect:

971.165(1)(a) (a) There shall be a separation of the issues with a sequential order of proof in a continuous trial. The plea of not guilty shall be determined first and the plea of not guilty by reason of mental disease or defect shall be determined second.

971.165(1)(b) (b) If the plea of not guilty is tried to a jury, the jury shall be informed of the 2 pleas and that a verdict will be taken upon the plea of not guilty before the introduction of evidence on the plea of not guilty by reason of mental disease or defect. No verdict on the first plea may be valid or received unless agreed to by all jurors.

971.165(1)(c) (c) If both pleas are tried to a jury, that jury shall be the same, except that:

971.165(1)(c)1. 1. If one or more jurors who participated in determining the first plea become unable to serve, the remaining jurors shall determine the 2nd plea.

971.165(1)(c)2. 2. If the jury is discharged prior to reaching a verdict on the 2nd plea, the defendant shall not solely on that account be entitled to a redetermination of the first plea and a different jury may be selected to determine the 2nd plea only.

971.165(1)(c)3. 3. If an appellate court reverses a judgment as to the 2nd plea but not as to the first plea and remands for further proceedings, or if the trial court vacates the judgment as to the 2nd plea but not as to the first plea, the 2nd plea may be determined by a different jury selected for this purpose.

971.165(1)(d) (d) If the defendant is found not guilty, the court shall enter a judgment of acquittal and discharge the defendant. If the defendant is found guilty, the court shall withhold entry of judgment pending determination of the 2nd plea.

971.165(2) (2) If the plea of not guilty by reason of mental disease or defect is tried to a jury, the court shall inform the jury that the effect of a verdict of not guilty by reason of mental disease or defect is that, in lieu of criminal sentence or probation, the defendant will be committed to the custody of the department of health services and will be placed in an appropriate institution unless the court determines that the defendant would not pose a danger to himself or herself or to others if released under conditions ordered by the court. No verdict on the plea of not guilty by reason of mental disease or defect may be valid or received unless agreed to by at least five-sixths of the jurors.

971.165(3) (3) 

971.165(3)(a) (a) If a defendant is not found not guilty by reason of mental disease or defect, the court shall enter a judgment of conviction and shall either impose or withhold sentence under s. 972.13 (2).

971.165(3)(b) (b) If a defendant is found not guilty by reason of mental disease or defect, the court shall enter a judgment of not guilty by reason of mental disease or defect. The court shall thereupon proceed under s. 971.17. A judgment entered under this paragraph is interlocutory to the commitment order entered under s. 971.17 and reviewable upon appeal therefrom.

971.165 History History: 1987 a. 86; 1989 a. 31, 334; 1995 a. 27 s. 9126 (19); Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); 2007 a. 20 s. 9121 (6) (a).

971.165 Note Judicial Council Note, 1987: Wisconsin presently requires each element of the crime (including any mental element) to be proven before evidence is taken on the plea of not guilty by reason of mental disease or defect. This statute provides for the procedural bifurcation of the pleas of not guilty and not guilty by reason of mental disease or defect, in order that evidence presented on the latter issue not prejudice determination of the former. State ex rel. LaFollette v. Raskin, 34 Wis. 2d 607 (1976).

971.165 Note The legal effect of a finding of not guilty by reason of mental disease or defect is that the court must commit the defendant to the custody of the department of health and social services under s. 971.17.

971.165 Note Sub. (2) allows a five-sixths verdict on the plea of not guilty by reason of mental disease or defect. [87 Act 86]

971.165 Annotation The decision to withdraw a not guilty by reason of mental defect plea belongs to the defendant, not counsel. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217.

971.165 Annotation Section 972.01 (1), which requires state consent to the waiver of a jury in a criminal trial, applies when a defendant seeks to waive a jury in the responsibility phase of a bifurcated trial. The state has a legitimate interest in having the decision of mental responsibility decided by a jury. State v. Murdock, 2000 WI App 170, 238 Wis. 2d 301, 617 N.W.2d 175, 99-0566.

971.165 Annotation A defendant can only be found not guilty by reason of mental disease or defect after admitting to the criminal conduct or being found guilty. While the decision made in the responsibility phase is not criminal in nature, the mental responsibility phase remains a part of the criminal case in general, and the defendant is entitled to invoke the 5th amendment at the mental responsibility phase without penalty. State v. Langenbach, 2001 WI App 222, 247 Wis. 2d 933, 634 N.W.2d 916, 01-0851.

971.165 Annotation Although a better practice, a circuit court is not required to conduct a right-to-testify colloquy at the responsibility phase of a bifurcated trial resulting from a plea of not guilty by reason of mental disease or defect. State v. Lagrone, 2016 WI 26, 368 Wis. 2d 1, 878 N.W.2d 636, 13-1424.

971.165 Annotation A directed verdict against a criminal defendant on the issue of insanity was constitutional. Leach v. Kolb, 911 F.2d 1249 (1990).

971.165 Annotation The trial court’s wholesale exclusion of the defendant’s proffered expert and lay testimony regarding post-traumatic stress disorder from the guilt phase of a murder trial did not violate the defendant’s right to present a defense and to testify on the defendant’s own behalf. Morgan v. Krenke, 232 F.3d 562 (2000).

971.165 Annotation Restricting the Admission of Psychiatric Testimony on a Defendant’s Mental State: Wisconsin’s Steele Curtain. Conley. 1981 WLR 733.

971.17 971.17 Commitment of persons found not guilty by reason of mental disease or mental defect.

971.17(1) (1) Commitment period.

971.17(1)(a) (a) Felonies committed before July 30, 2002. Except as provided in par. (c), when a defendant is found not guilty by reason of mental disease or mental defect of a felony committed before July 30, 2002, the court shall commit the person to the department of health services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed against an offender convicted of the same felony, including imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

971.17(1)(b) (b) Felonies committed on or after July 30, 2002. Except as provided in par. (c), when a defendant is found not guilty by reason of mental disease or mental defect of a felony committed on or after July 30, 2002, the court shall commit the person to the department of health services for a specified period not exceeding the maximum term of confinement in prison that could be imposed on an offender convicted of the same felony, plus imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

971.17(1)(c) (c) Felonies punishable by life imprisonment. If a defendant is found not guilty by reason of mental disease or mental defect of a felony that is punishable by life imprisonment, the commitment period specified by the court may be life, subject to termination under sub. (5).

971.17(1)(d) (d) Misdemeanors. When a defendant is found not guilty by reason of mental disease or mental defect of a misdemeanor, the court shall commit the person to the department of health services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed against an offender convicted of the same misdemeanor, including imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

971.17(1g) (1g) Notice of restriction on firearm possession. If the defendant under sub. (1) is found not guilty of a felony by reason of mental disease or defect, the court shall inform the defendant of the requirements and penalties under s. 941.29.

971.17(1h) (1h) Notice of restrictions on possession of body armor. If the defendant under sub. (1) is found not guilty of a violent felony, as defined in s. 941.291 (1) (b), by reason of mental disease or defect, the court shall inform the defendant of the requirements and penalties under s. 941.291.

971.17(1j) (1j) Sexual assault; lifetime supervision.

971.17(1j)(a) (a) In this subsection, “serious sex offense” has the meaning given in s. 939.615 (1) (b).

971.17(1j)(b) (b) If a person is found not guilty by reason of mental disease or defect of a serious sex offense, the court may, in addition to committing the person to the department of health services under sub. (1), place the person on lifetime supervision under s. 939.615 if notice concerning lifetime supervision was given to the person under s. 973.125 and if the court determines that lifetime supervision of the person is necessary to protect the public.

971.17(1m) (1m) Sexual assault; registration and testing.

971.17(1m)(a) (a)

971.17(1m)(a)1. 1. If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a felony or a violation of s. 165.765 (1), 2011 stats., or of s. 940.225 (3m), 941.20 (1), 944.20, 944.30 (1m), 944.31 (1), 944.33, 946.52, or 948.10 (1) (b), the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis. The judge shall inform the person that he or she may request expungement under s. 165.77 (4).

971.17(1m)(a)2. 2. Biological specimens required under subd. 1. shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

971.17(1m)(b) (b)

971.17(1m)(b)1m. 1m.

971.17(1m)(b)1m.a. a. Except as provided in subd. 2m., if the defendant under sub. (1) is found not guilty by reason of mental disease or defect for any violation, or for the solicitation, conspiracy, or attempt to commit any violation, of ch. 940, 944, or 948 or s. 942.08 or 942.09, or ss. 943.01 to 943.15, the court may require the defendant to comply with the reporting requirements under s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), and that it would be in the interest of public protection to have the defendant report under s. 301.45.

971.17(1m)(b)1m.b. b. If a court under subd. 1m. a. orders a person to comply with the reporting requirements under s. 301.45 in connection with a finding of not guilty by reason of mental disease or defect for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 942.09 and the person was under the age of 21 when he or she committed the offense, the court may provide that upon termination of the commitment order under sub. (5) or expiration of the order under sub. (6) the person be released from the requirement to comply with the reporting requirements under s. 301.45.

971.17(1m)(b)2m. 2m. If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a violation, or for the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, 948.095, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, or 948.30, of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or of s. 940.30 or 940.31 if the victim was a minor and the defendant was not the victim’s parent, the court shall require the defendant to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the defendant, that the defendant is not required to comply under s. 301.45 (1m).

971.17(1m)(b)3. 3. In determining under subd. 1m. a. whether it would be in the interest of public protection to have the defendant report under s. 301.45, the court may consider any of the following:

971.17(1m)(b)3.a. a. The ages, at the time of the violation, of the defendant and the victim of the violation.

971.17(1m)(b)3.b. b. The relationship between the defendant and the victim of the violation.

971.17(1m)(b)3.c. c. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim.

971.17(1m)(b)3.d. d. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

971.17(1m)(b)3.e. e. The probability that the defendant will commit other violations in the future.

971.17(1m)(b)3.g. g. Any other factor that the court determines may be relevant to the particular case.

971.17(1m)(b)4. 4. If the court orders a defendant to comply with the reporting requirements under s. 301.45, the court may order the defendant to continue to comply with the reporting requirements until his or her death.

971.17(1m)(b)5. 5. If the court orders a defendant to comply with the reporting requirements under s. 301.45, the clerk of the court in which the order is entered shall promptly forward a copy of the order to the department of corrections. If the finding of not guilty by reason of mental disease or defect on which the order is based is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department of corrections a certificate stating that the finding has been reversed, set aside or vacated.

971.17(2) (2) Investigation and examination.

971.17(2)(a) (a) The court shall enter an initial commitment order under this section pursuant to a hearing held as soon as practicable after the judgment of not guilty by reason of mental disease or mental defect is entered. If the court lacks sufficient information to make the determination required by sub. (3) immediately after trial, it may adjourn the hearing and order the department of health services to conduct a predisposition investigation using the procedure in s. 972.15 or a supplementary mental examination or both, to assist the court in framing the commitment order.

971.17(2)(b) (b) If a supplementary mental examination is ordered under par. (a), the court may appoint one or more examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the person. In lieu thereof, the court may commit the person to an appropriate mental health facility for the period specified in par. (c), which shall count as days spent in custody under s. 973.155.

971.17(2)(c) (c) An examiner shall complete an inpatient examination under par. (b) and file the report within 15 days after the examination is ordered unless, for good cause, the examiner cannot complete the examination and requests an extension. In that case, the court may allow one 15-day extension of the examination period. An examiner shall complete an outpatient examination and file the report of examination within 15 days after the examination is ordered.

971.17(2)(d) (d) If the court orders an inpatient examination under par. (b), it shall arrange for the transportation of the person to the examining facility within a reasonable time after the examination is ordered and for the person to be returned to the jail or court within a reasonable time after the examination has been completed.

971.17(2)(e) (e) The examiner appointed under par. (b) shall personally observe and examine the person. The examiner or facility shall have access to the person’s past or present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If the examiner believes that the person is appropriate for conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.

971.17(2)(f) (f) The costs of an examination ordered under par. (a) shall be paid by the county upon the order of the court as part of the costs of the action.

971.17(2)(g) (g) Within 10 days after the examiner’s report is filed under par. (c), the court shall hold a hearing to determine whether commitment shall take the form of institutional care or conditional release.

971.17(3) (3) Commitment order.

971.17(3)(a) (a) An order for commitment under this section shall specify either institutional care or conditional release. The court shall order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage. If the court does not make this finding, it shall order conditional release. In determining whether commitment shall be for institutional care or conditional release, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person’s mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

971.17(3)(b) (b) If the state proves by clear and convincing evidence that the person is not competent to refuse medication or treatment for the person’s mental condition, under the standard specified in s. 971.16 (3), the court shall issue, as part of the commitment order, an order that the person is not competent to refuse medication or treatment for the person’s mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.

971.17(3)(c) (c) If the court order specifies institutional care, the department of health services shall place the person in an institution under s. 51.37 (3) that the department considers appropriate in light of the rehabilitative services required by the person and the protection of public safety. If the person is not subject to a court order determining the person to be not competent to refuse medication or treatment for the person’s mental condition and if the institution in which the person is placed determines that the person should be subject to such a court order, the institution may file with the court, with notice to the person and his or her counsel and the district attorney, a motion for a hearing, under the standard specified in s. 971.16 (3), on whether the person is not competent to refuse medication or treatment. A report on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the person needs medication or treatment and that the person is not competent to refuse medication or treatment, based on an examination of the person by a licensed physician. Within 10 days after a motion is filed under this paragraph, the court shall determine the person’s competency to refuse medication or treatment for the person’s mental condition. At the request of the person, his or her counsel or the district attorney, the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed under this paragraph. If the district attorney, the person and his or her counsel waive their respective opportunities to present other evidence on the issue, the court shall determine the person’s competency to refuse medication or treatment on the basis of the report accompanying the motion. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. If the state proves by evidence that is clear and convincing that the person is not competent to refuse medication or treatment, under the standard specified in s. 971.16 (3), the court shall order that the person is not competent to refuse medication or treatment for the person’s mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.

971.17(3)(d) (d) If the court finds that the person is appropriate for conditional release, the court shall notify the department of health services. The department of health services and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person’s need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health services may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 21 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health services and person to be released request additional time to develop the plan. If the county department of the person’s county of residence declines to prepare a plan, the department of health services may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the individual will be living in that county.

971.17(3)(e) (e) An order for conditional release places the person in the custody and control of the department of health services. A conditionally released person is subject to the conditions set by the court and to the rules of the department of health services. Before a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the court a written statement waiving the right to be notified. If the department of health services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays, and legal holidays. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department of health services may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2) (d). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked, it may revoke the order for conditional release and order that the released person be placed in an appropriate institution under s. 51.37 (3) until the expiration of the commitment or until again conditionally released under this section.

971.17(4) (4) Petition for conditional release.

971.17(4)(a) (a) Any person who is committed for institutional care may petition the committing court to modify its order by authorizing conditional release if at least 6 months have elapsed since the initial commitment order was entered, the most recent release petition was denied or the most recent order for conditional release was revoked. The director of the facility at which the person is placed may file a petition under this paragraph on the person’s behalf at any time.

971.17(4)(b) (b) If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney and, subject to sub. (7) (b), refer the matter to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (j). If the person petitions through counsel, his or her attorney shall serve the district attorney.

971.17(4)(c) (c) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person’s past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If any such examiner believes that the person is appropriate for conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.

971.17(4)(d) (d) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18). The court shall grant the petition unless it finds by clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage if conditionally released. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person’s mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

971.17(4)(e) (e)

971.17(4)(e)1. 1. If the court finds that the person is appropriate for conditional release, the court shall notify the department of health services. Subject to subd. 2. and 3., the department of health services and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person’s need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health services may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health services and person to be released request additional time to develop the plan.

971.17(4)(e)2. 2. If the county department of the person’s county of residence declines to prepare a plan, the department of health services may arrange for any other county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. This subdivision does not apply if the person was found not guilty of a sex offense, as defined in s. 301.45 (1d) (b), by reason of mental disease or defect.

971.17(4)(e)3. 3. If the county department for the person’s county of residence declines to prepare a plan for a person who was found not guilty of a sex offense, as defined in s. 301.45 (1d) (b), by reason of mental disease or defect, the department may arrange for any of the following counties to prepare a plan if the county agrees to do so:

971.17(4)(e)3.a. a. The county in which the person was found not guilty by reason of mental disease or defect, if the person will be living in that county.

971.17(4)(e)3.b. b. A county in which a treatment facility for sex offenders is located, if the person will be living in that facility.

971.17(4m) (4m) Notice about conditional release.

971.17(4m)(a) (a) In this subsection:

971.17(4m)(a)1. 1. “Crime” has the meaning designated in s. 949.01 (1).

971.17(4m)(a)2. 2. “Member of the family” means spouse, domestic partner under ch. 770, child, sibling, parent or legal guardian.

971.17(4m)(a)3. 3. “Victim” means a person against whom a crime has been committed.

971.17(4m)(b) (b) If the court conditionally releases a defendant under this section, the district attorney shall do all of the following in accordance with par. (c):

971.17(4m)(b)1. 1. Make a reasonable attempt to notify the victim of the crime committed by the defendant or, if the victim died as a result of the crime, an adult member of the victim’s family or, if the victim is younger than 18 years old, the victim’s parent or legal guardian.

971.17(4m)(b)2. 2. Notify the department of corrections.

971.17(4m)(c) (c) The notice under par. (b) shall inform the department of corrections and the person under par. (b) 1. of the defendant’s name and conditional release date. The district attorney shall send the notice, postmarked no later than 7 days after the court orders the conditional release under this section, to the department of corrections and to the last-known address of the person under par. (b) 1.